Can You Apply for H&C After a Refused Refugee Claim? The 12-Month Bar Explained
The short answer: Yes, but usually not right away. You can't apply for H&C while your refugee claim is still pending at the Immigration and Refugee Board. After a final negative decision, there's generally a 12-month bar before IRCC will examine an H&C application. There are two exceptions: if removal would adversely affect the best interests of a child directly affected, or if you face a risk to life because adequate medical care isn't available in your home country.
The bars, in plain language
Under section 25 of the Immigration and Refugee Protection Act:
1. No H&C while a refugee claim is pending. If your claim is still before the Refugee Protection Division (RPD) or Refugee Appeal Division (RAD), or your claim was found ineligible and your application for protection (PRRA) is still pending, IRCC won't examine an H&C application.
2. The 12-month bar. IRCC generally won't examine an H&C application if less than 12 months have passed since your refugee claim was last:
rejected by the RPD or RAD,
refused at the Federal Court (leave or judicial review), or
declared abandoned, or withdrawn after the IRB started hearing substantive evidence (withdrawing before your hearing doesn't trigger the bar).
If you file during the bar without asking for an exception, the application and fees are generally returned. If you ask for an exception and IRCC decides it doesn't apply, the request is refused and the fees are not refunded.
The two exceptions
The 12-month bar doesn't apply if you show either:
Best interests of a child. Your removal would have an adverse effect on the best interests of a child directly affected.
Medical risk to life. Removal would put your life at real, imminent and foreseeable risk because your country can't provide adequate health or medical care, shown by medical evidence and proof that treatment isn't available there.
You need to clearly ask for the exception and support it with evidence. It isn't applied automatically.
Can you raise the same facts again?
H&C isn't a second refugee claim. Officers in an H&C application don't decide whether you're a refugee. But a refused refugee claim doesn't automatically stop an H&C application, and the hardship you'd face, including discrimination or difficult conditions in your home country, can still be weighed as part of your overall circumstances.
How is the 12 months counted?
Generally from the date of the last negative decision in your refugee claim. For example, if you went to the RAD, the clock usually starts from the RAD decision. If you went to the Federal Court, the 12 months run from the latest of the RPD, RAD or Federal Court decision. Get advice on your exact dates before applying, because applying even one day early can mean the application is returned.
What about removal?
An H&C application doesn't stop removal by itself. After a refused refugee claim, you may be contacted by the Canada Border Services Agency (CBSA). If that happens, get professional advice right away.
Who does this affect?
People whose refugee claim was refused at the RPD or RAD
Families with children in Canada
People with serious medical conditions
Anyone who withdrew or abandoned a refugee claim
What should you do?
Write down the date of your last negative refugee decision.
Check whether an exception applies: a child directly affected, or a medical risk to life.
Gather evidence for your establishment, children and health.
Get advice about removal and status right away.
Plan the H&C filing for after the 12 months, or earlier if an exception applies.
Related guides
Frequently asked questions
Can I apply for H&C while my refugee claim is pending?
No. IRCC won't examine an H&C application while your refugee claim is pending before the RPD or RAD.
How long do I have to wait after my refugee claim is refused?
Generally 12 months from the last negative decision, unless an exception applies.
What are the exceptions to the 12-month bar?
If your removal would adversely affect the best interests of a child directly affected, or if you'd face a risk to life because adequate medical care isn't available in your home country.
What happens if I apply during the 12-month bar?
If you didn't ask for an exception, IRCC generally returns the application and fees. If you asked for one and it doesn't apply, the request is refused and the fees aren't refunded.
Key takeaways
No H&C while a refugee claim is pending.
Usually a 12-month bar after the last negative refugee decision.
Two exceptions: a child's best interests, or a medical risk to life.
You must ask for the exception and prove it.
H&C doesn't stop removal. Get advice quickly.
The bottom line
A refused refugee claim isn't always the end of the road. Knowing the timing rules, and whether an exception fits, can protect your chance at an H&C application.
E-Pathway Immigration helps families plan H&C applications after refugee refusals, especially where children or health needs are involved. We work in English, Chinese and Vietnamese. Book a case review.
About the author
Domonic Cheung is a Regulated Canadian Immigration Consultant (RCIC, licence R711344) with E-Pathway Immigration in Vancouver. He focuses on humanitarian and compassionate (H&C) applications and complex family sponsorships, and works with clients in English, Chinese and Vietnamese.
Sources
Immigration and Refugee Protection Act, s. 25(1.2) and 25(1.21); IRCC H&C program delivery instructions (canada.ca); IRCC Guide 5291, Humanitarian and compassionate considerations
This article is for informational purposes only and does not constitute legal or immigration advice. Consult a licensed RCIC or immigration lawyer for your specific situation.
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